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Advertising Agencies Fight Tobacco Act

Lawsuit challenges the Family Smoking Prevention and Tobacco Control Act.

November 30, 2009, 07:00 pm

NEW YORK -- The Association of National Advertisers (ANA), the American Association of Advertising Agencies and the American Advertising Federation, filed a "friend of the court" brief in a lawsuit challenging the constitutionality of the Family Smoking Prevention and Tobacco Control Act. Filed with the U.S. District Court for the Western District of Kentucky Monday, the amicus brief contends that the act violates the First Amendment by restricting free speech.

Signed into law in June, the Tobacco Control Act restricts the sale, marketing and production of tobacco products, and gives regulation of the tobacco industry to the Food and Drug Administration. Nearly every media outlet that tobacco companies could use to market the legal product are affected. For example, outdoor advertising may not appear within 1,000 feet of elementary or secondary schools; t-shirts promoting tobacco products are banned; all advertising, including direct mail, must use black text on a white background, except in magazines or other periodicals that have 85 percent adult readership.

"The sweeping restrictions would impermissibly and unconstitutionally make it virtually impossible to advertise tobacco, a legal product to adults," said Dan Jaffe, executive vice president of the ANA. "This is the most restrictive advertising legislation ever passed."

The act could also set a precedent to legislate other kinds of products that legislators deem should be protected from children, such as prescription drugs, alcohol, and even R-rated movies, video games and music.

"Censorship can become habit-forming. We have also seen proposals to ban or seriously restrict certain food ads and ads for prescription drug products. It is critically important for the advertising community to stand up for the First Amendment rights of all marketers, whenever they are threatened," Jaffe said.